Requiring a DUI suspect to perform field sobriety tests does not violate the Fifth Amendment

People v. Cooper (July 18, 2019, No. B286201) ___Cal.App.5th___ [2019 Cal. App. LEXIS 648].

A jury convicted defendant and appellant Sheila Cooper of driving under the influence of alcohol causing injury within 10 years of a prior driving under the influence offense. On appeal, Cooper contends the trial court erred in denying her motion to suppress statements she made to police during field sobriety tests administered at the police station. Cooper claimed a violation of her Fifth Amendment rights under (Miranda).

The accident and Cooper’s demeanor

Cooper’s vehicle struck a Kia at a high rate of speed on Manchester Boulevard in Los Angeles. When police officers arrived, about 10 minutes after the collision, Cooper was standing on the sidewalk. LAPD Officer Colwart asked Cooper for her driver’s license, registration, and proof of insurance. The officer observed that Cooper’s eyes were red and watery, she smelled like alcohol, and she was chewing gum. Her speech was slurred.  When Cooper walked back to her car, she was stumbling and unable to walk straight.

Cooper got into her car and “kind of just sat there.” She was upset and crying. Eventually Cooper went through her wallet and handed her license to the officer. She got out of her car. The officer again asked Cooper for her registration and proof of insurance. Cooper “became very upset” and “threw her wallet on the hood of the car.” She was “walking around” and “cursing.”

When asked Cooper if she had been drinking; she said no. The officer asked Cooper if she had “any physical defects”; she said no. Cooper refused to say where she had been going. In response to the officer’s questions, Cooper told him what she had eaten and when she had last slept. The officer asked Cooper if she was under a doctor’s care and she responded, “Ain’t your business.”

Officers take Cooper to the police station and ask her to perform field sobriety tests

Colwart transported Cooper to the police station to administer the field sobriety tests (FSTs). The officer later explained: “She was just so upset at the scene; she wasn’t focused on any—the questions I was asking. She just was really upset.” Cooper was “pacing around” and the roadway “was still an active collision scene.” Female officers arrived. They had to “grab [Cooper] and bring her to the [police] car.” The station was one and one-half to two miles from the scene.

Once at the station, Colwart began the FSTs with Cooper in the long hallway next to the watch commander’s room.

The Field Sobriety Tests

 

The first test was the “eye examination,” looking for horizontal gaze nystagmus. Cooper’s performance was “consistent with somebody who is impaired due to alcohol.”Romberg Test

Next, Colwart, after demonstrating, had Cooper perform the modified Romberg test, instructing Cooper to stand with her feet together, hands to her sides, close her eyes, tilt her head back, and estimate 30 seconds. Cooper swayed back and forth slightly while performing the test; she estimated 23 seconds to be 30 seconds. Variation within the “normal range” is five seconds in either direction; Cooper’s estimate of 23 seconds thus was just outside the normal range. Her performance on that test—without more—would not demonstrate impairmenWalk-and-turn Test

Next, Colwart explained, then demonstrated, the walk-and-turn test. Cooper indicated she understood the test but she refused to perform it. Cooper told Colwart “her thighs were too big and her pants were too tight.”

Colwart then explained and demonstrated the one-leg stand test. Cooper refused to do that test as well. She told Colwart “she wouldn’t be able to do it because she had a disability.” Cooper told Colwart the nature of the disability “ain’t [your] business.”

EC/IR intoxilyzer breath test

Colwart read Cooper the chemical admonition, advising her she was required to submit to a breath test or a blood test Cooper chose the breath test. Colwart’s partner Grate explained to Cooper how to do the test. Cooper didn’t blow hard enough and the machine “said insufficient sample.” Grate asked Cooper three more times to blow into the machine properly and with sufficient force, without success.

Cooper essentially refused to take any more tests.

Cooper’s claim of a Miranda Violation

Cooper argues the trial court erred in declining to suppress six statements she made at the police station

Nontestimonial responses are not subject to the Miranda Rule

The Court of Appeal affirmed defendant’s conviction. The trial court acted properly in not suppressing statements defendant made during field sobriety tests (FSTs). The U.S. Const., 5th Amend., does not bar the admission of volunteered statements of any kind

Nontestimonial responses by a suspect—even though made in the course of custodial interrogation—are not subject to the Miranda rule. The United States Supreme Court has drawn a distinction between testimonial and real or physical evidence for purposes of the privilege against self-incrimination. A suspect may be compelled to provide a blood sample; participate in a lineup and repeat a phrase provided by police; provide a handwriting exemplar; and read a transcript to provide a voice exemplar.

Requiring a DUI suspect to perform field sobriety tests does not violate U.S. Const., 5th Amend., because the evidence procured is of a physical nature rather than testimonial.